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Criminal Procedure
Stetson University School of Law
Scully, Judith AM

I.                   Searches and Seizures: Basic Concepts

Overview
4th Amend limits discretion by requiring a significant degree of justification before police can intrude on enumerated rights
Probable cause must be had before police can conduct and search and seizure…determined by a neutral magistrate
4th Amend. Requirements
i.      Probable cause
ii.      Oath
iii.      Particular description whenever a warrant is issued
requirement of reasonableness
i.      product of balancing, court weighs the state’s interests against the individual’s interest to determine whether a warrant is necessary, what level of suspicion if necessary, and whether the police have otherwise behaved properly
remedy for 4th Amend violation : application of the exclusionary rule that requires any evidence obtained as a result of the violation cannot be used against the defendant at a criminal trial
4th Amend applicable to searches and seizures of property, and arrests of persons
Protects PEOPLE not places
i.      What a person knowingly exposes to the public, even in own home or office, is not subject to 4th Amend protection
4th Amend applies only to govt action; if a search is performed by a private individual who is not acting as an agent for the govt or w/ govt participation = no 4th Amend violation

What is a “Search”
Generally, an intrusion with a person’s reasonable expectation of property
Katz test: for determining whether a person is entitled to 4th Amend protection
i.      First, the person have exhibited an actual (subjective) expectation of privacy, and
ii.      The expectation be one that society is prepared to recognize as reasonable (objective)
w/ trespassory intrusions : it is an important factor though not dispositive
i.      the reach of the 4th Amen cannot turn upon the presence of absence of a physical intrusion into an given enclosures. Katz
factors to consider in search analysis: cartilage, assumption of risk, property interests, custom, legality, vantage point, reduced expectations of privacy, and subpoenas

Curtilage
Open fields and unoccupied and/or undeveloped areas open areas have no 4th Amend protection; U.S. v. Oliver
i.      However activities outside the home but on the cartilage adjacent to and intimately connected w/ the home are protected
ii.      Govt intrusion upon the open field is therefore simply not an unreasonable search b/c the individual cannot have a reasonable expectation of privacy w/ respect to open fields he owns
generally, cartilage is the area surrounding a dwelling
i.      consists of all bldgs in close proximity to a dwelling which are continually used for carrying on domestic employment, or such place necessary and convenient to a dwelling and is habitually used for family purposes.
ii.      Areas w/in cartilage the inhabitant has a justifiable expectation of privacy
test for determining whether a particular bldg falls w/in cartilage. U.S. v. Dunn
i.      the proximity of the home to the area claimed to be cartilage
ii.      whether the area is included w/in an enclosure that surrounds the home
iii.      the nature of the uses to which the area is put, and
iv.      the steps taken by the resident to protect the area from observation by people passing it
when such a bldg is found to be w/in the cartilage = inhabitant had a justifiable expectation of privacy w/ respect to that bldg so that the 4th Amend is triggered by police officer’s looking into or searching

Assumption of risk
Generally, looking at whether an individual assumed the risk that certain information will not be kept private
i.      In situations where:
1.      information conveyed to 3rd parties : bank records, deposit slips, financial statements
2.      agents and informants
3.      pen registers
4.      electronic tracking devices
5.      aerial surveillance
6.      thermal imaging devices
7.      container searches
assumption of risk requires a decision to engage in conduct despite conscious awareness of the risk
in terms of the 4th Amend, the Court is willing to apply assumption of risk doctrine even in situations where the individual may not have been consciously aware of the risk

information to third parties
the fact a defendant has transferred property to a 3rd person may indicate he no longer has a reasonable expectation of privacy to that property
checks, deposit slips, and financial statements have no reasonable expectation of privacy w/ respect to these documents. U.S. v. Miller
i.      4th Amend does not prohibit obtaining information revealed to a 3rd party and conveyed to govt authorities

Agents and Informants
4th Amend does not protect a wrongdoer’s misplaced trust or belief that a person to whom he has voluntarily conveyed his wrongdoing will not reveal it
No 4th Amend search or seizure occurred – – misplaced trust is own fault
No 4th Amend violation occurs when a defendant invites undercover agents into his home for the specific purpose of executing a sale of narcotics. U.S. v. Lewis
i.      The home was converted into a commercial center in which outsiders were invited in for business…no justifiable expectation of privacy
ii.      One contemplating illegal activities must realize that his companio

broadly used by civilians diminishes individuals’ privacy interests
iv.      police can get a warrant : rule does not say police can’t use sense-enhancing stuff, rule only says the use constitutes a search requiring a warrant

Container searches – trash
Generally, trash or other abandoned property will not be material as to which the owner has an objectively reasonable expectation of privacy
When a person puts trash out on the curb, even though w/in cartilage, to be picked up by the garbage collector, police may search that trash w/o a warrant. California v. Greenwood
Trash still on the property : court might hold that an owner still has an objectively reasonable expectation of privacy that others will not illegally trespass upon his property

Property interests
Legitimate expectations of privacy by law must have a source outside the 4th Amend, either by reference to concepts of real or personal property
Ownership or possession is relevant, however the amount of weight to give is conflicting
w/ abandoned property : there is no search where police examine previously protected property in which an owner has voluntarily relinquished his or his proprietary interest


Social custom
A guest in another person’s home or place of business may or may not have a legitimate expectation of privacy in the placed visited
The standard : Where the person is a social guest, at a private home, he generally has a legitimate expectation of privacy in that home; but where the person’s visit if solely for a business purpose there is not likely a legitimate expectation of privacy
An overnight social guest has a legitimate expectation of privacy in home where they are staying. Minnesota v. Olson
i.      Police may not make a warrantless search or search of the premises where the defendant is staying
ii.      Applies to hotel rooms
where a guest visits a house only briefly, and does so for a purely business purpose, no legitimate expectation of privacy exists. Minnesota v. Carter
the expectation of privacy in one’s place of work has deep roots in 4th Amend history. O’Conner v. Ortega
i.      an administrator had a reasonable expectation of privacy in office, even though in govt offices many others have access

Legality and Intimacy of Activities
Individuals enjoy little or no privacy interests when they engage